A National Debate Is In Order

July 10, 1989|By JAMES J. KNICELY

To recognize the importance of First Amendment values and the strength of the majority logic of the Supreme Court is not to say that the "particular" contempt known as flag burning deserves constitutional protection as free speech. However compelling the court's rendition of abstract First Amendment logic, the substance of the matter is that most Americans believe the flag is deserving of special status and protection, and for good reason.

The flag does not deserve protection merely because government has designated the flag as "the" national symbol, but rather, as Justice William Rehnquist noted, because 200 years of our history have done so.

Moreover, the flag is a particularly unique symbol. In the words of Justice John Paul Stevens, it "signifies the ideas that characterize the society." Liberty, freedom, emancipation, duty, honor, country - all these and more are embodied in the flag, not to mention images of Peale's portrait of Washington, Betsy Ross, Francis Scott Key, Iwo Jima, the Pleadge of Allegiance and the "Stars and Stripes Forever."

Hard choices sometimes produce bad or uncomfortable results. But here there is a silver-lining to the court's Solomon-like wisdom to permit destruction of something very precious. Its pronouncement is coupled with the painful admission of "distaste for the result," a plaintive overture, if there ever was one, to the Congress and the people to overturn it.

The court has done its duty and affirmed the importance of First Amendment values. The Congress should now do its duty and launch a national debate to permit the people to affirm whether the flag embodies the precious liberty and freedom that make free speech possible and, if so, whether the flag should be protected absolutely from defacement and desecration.

* James J. Knicely is a Williamsburg attorney who has served as lead counsel in numerous First Amendment cases.